Stadt v. State

PELHAM, P. J. (1, 2) The defendant was charged with and convicted of selling spirituous, vinous, or malt liquors contrary to law. The record contains a bill of exceptions, but neither it nor any other part of the record presents any question for review. While the bill of exceptions contains a recital to the effect that at the conclusion of the evidence for the state the defendant’s counsel moved to exclude it and asked the court for the affirmative charge on the ground (quoting) “that there is a variance between the indictment and the law governing,” which motion and request the court denied, to which defendant excepted, yet, the ground of the motion and request so denied is so unintelligently stated as not to apprise either us or the lower court as to the point sought to be raised, and not to raise any point of law. Hence there is nothing to review. No demurrer was filed to the indictment, and none could successfully, have been, and the form employed was sufficient to cover an offense committed either during state-wide prohibition or local option (Scott v. State, 3 Ala. App. 143, 57 South. 413), and fail, therefore, to see how, if this was the point attempted to be raised, there was any variance between the allegations of the indictment and the evidence offered to sustain it, which tended to show a sale; and this regardless of whether the law in force in Jefferson county at the time of the sale prohibited sales entirely or prohibited them except by licensed dealers. Defendant offered no proof tending to show that he was a licensed dealer. It was for the jury to say, under the evidence, whether he made the sale. It follows that the judgment of conviction must be, and'is, affirmed. Affirmed.